882 F.

2d 760
50 Fair Empl.Prac.Cas. 898,
51 Empl. Prac. Dec. P 39,244, 58 USLW 2162,
28 Fed. R. Evid. Serv. 1057

Adeline M. BRUNO
v.
W.B. SAUNDERS COMPANY and CBS Educational and
Professional
Publishing, a division of CBS, Inc., Appellants.
No. 88-1895.

United States Court of Appeals,

Third Circuit.
Argued April 17, 1989.
Decided Aug. 14, 1989.
Rehearing and Rehearing In Banc Denied Sept. 8, 1989.

John J. McAleese, Jr. (argued), John H. Widman, McAleese, McGoldrick

& Susanin, P.C., King of Prussia, Pa., for appellants.
Geoffrey P. Gompers (argued), Philadelphia, Pa., for appellee.
Before SEITZ, * SLOVITER and GREENBERG, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.

The appeal in this Age Discrimination in Employment (ADEA) action, 29

U.S.C. Sec. 621, et seq., follows a jury verdict against the defendants W.B.
Saunders Company (Saunders) and CBS Educational and Professional
Publishing (CEPP) in the amount of $850,000. After the verdict, the district
court, which had jurisdiction under 28 U.S.C. Sec. 1331, denied the defendants'
motion for judgment n.o.v. or in the alternative for a new trial. This court has
appellate jurisdiction under 28 U.S.C. Sec. 1291.

I.
2

In relating the background of this case, we rely on uncontradicted testimony,

except where noted. Adeline Bruno, the plaintiff in this case, was employed by
W.B. Saunders Company from 1974 until May 1986. Saunders is a publisher of
medical textbooks and medical periodicals, or "clinics." During the entire time
relevant to this case, W.B. Saunders was a wholly owned subsidiary of CEPP.

Prior to the events out of which this litigation arose, Bruno was Director of
Saunders' Central Order Processing Department. This position was described in
Saunders' internal nomenclature as a "level 9" position. As Director of Central
Order Processing, Bruno earned $44,350 annually as of December 1984.

In early 1984, Saunders announced plans to eliminate the Central Order

Processing Department. One consequence of this would ultimately be the
elimination of Bruno's job. Bruno was at the time forty-six years old.

Later that year, while Bruno was still working in her Central Order Processing
job, the Manager of the Clinics Fulfillment Department at Saunders was
transferred, and his job became open. Anthony Degutis, then Director of
Budgets and Planning at Saunders, was given responsibility for finding a
replacement. Within the Saunders hierarchy, the title "Manager" was a step
below that of "Director," the title then held by Bruno. The newly open position
was classified by Saunders as a "level 8" position. Bruno applied for the job.

The Clinics Fulfillment Department processes ("fulfills") orders for Saunders'

clinics. From 1977 until it was computerized in 1980, the Clinics Fulfillment
Department had been under the direction of Bruno in her capacity as Director of
Central Order Processing. Degutis testified that his original belief was that
Bruno "would best fill this position." Indeed, Degutis was informed by two
CEPP executives in New York to whom Bruno had indirectly reported, Richard
Bates and William Wright, that Bruno was the obvious successor to the Clinics
Fulfillment position.

At the interviews conducted by Degutis, Beverly Dietrich, one of the ten

candidates for the position, was treated differently from the others. Dietrich,
who was then 36, was taken out by Degutis for a ninety minute lunch at an
upscale restaurant near Saunders' office in Philadelphia. None of the other
candidates was taken to a restaurant. Bruno was interviewed for approximately
twenty minutes in a vacant office in the Saunders building.

Degutis testified that Dietrich "was not at the time we started the interview
process[,] in my mind[,] qualified" for the Clinics Fulfillment position. At the
time of the interviews for the job of Manager of Clinics Fulfillment, Dietrich
was a Supervisor of Systems Analysis in the Clinics Fulfillment Department.
Within the Saunders hierarchy, "Supervisors" are below "Managers." Dietrich's
particular job was classified as a "level 3" position. Dietrich had been with
Saunders three years, and had worked on the computerization of the Clinics
Fulfillment Department. At the time of her interview, Dietrich was earning an
annual salary of $19,773.

Dietrich's previous work experience--beginning several years before she began

working at Saunders--had been as Assistant Manager and then Manager of the
Arena Stage, a theater in Washington, D.C. In that position she was responsible
for a staff of 15 to 20 people. She was paid on an hourly basis. Her more recent
work experience prior to joining Saunders had been as a sales clerk at
Bamberger's Department Store and as a front office manager at a grocery store.

10

Two months before formally filling the position, Degutis made Dietrich
temporary head of the Clinics Fulfillment Department. While Dietrich was at
the time the senior of the three Supervisors in the Department, Bruno testified
that Degutis told her that Dietrich had been given this job because "I know how
everybody felt about Beverly so I wanted to give her a chance to prove herself."
Degutis testified that this interim appointment was not intended to be a testing
period for Dietrich.

11

Ultimately, Degutis chose Dietrich to fill the post permanently. Although the
job had been posted as a "level 8" position, it was given initially to Dietrich as a
"level 7." Dietrich was raised from a level 3 to a level 8 in two steps primarily
because Saunders management felt that her salary increase would otherwise
have been too great for one person to receive at one time. Six months after her
installment as Manager of Clinics Fulfillment, Dietrich's annual salary was
$29,000. Following Dietrich's selection, Bruno filed an Equal Employment
Opportunity Commission (EEOC) charge alleging discrimination on the basis
of age.

12

Several months after she was passed over for the Clinics Fulfillment position,
and while she was still working at Saunders, Bruno was offered a job as
Manager of Inventory Planning and Control in the Bellmawr, New Jersey
warehouse facility Saunders shared with other CEPP subsidiaries. Bruno first
accepted the job, but changed her mind four weeks later, before the job
commenced. Bruno testified that she was told by a CEPP executive that a

condition of her employment in that position was that she not proceed with her
age discrimination claim.
13

Bruno was laid off by Saunders in May 1986. After her termination, Bruno
continued to receive pay for four months. Seven months after her severance pay
ended, Bruno accepted a job at the Provident National Bank for an annual
salary of $18,000 plus benefits.

14

Bruno brought this action in the district court under the ADEA.1 After trial, the
jury found the defendants liable for "willful" age discrimination in their failure
to give Bruno the Manager of Clinics Fulfillment job, and awarded liquidated
damages as provided for by the statute. See 29 U.S.C. Sec. 626(b). The jury
verdict in favor of Bruno included $150,000 denominated "lost wages and
benefits" and $700,000 denominated "front pay." The parties agree that half of
each of these amounts represents liquidated damages.

15

On appeal, the defendants present a litany of alleged errors.

II.
16

The defendants' first challenge to the judgment in the district court is that the
evidence was insufficient to support the verdict. To win on such a challenge,
the defendants must show that the record "is critically deficient of that
minimum quantum of evidence from which a jury might reasonably afford
relief." Simone v. Golden Nugget Hotel, 844 F.2d 1031, 1033 (3d Cir.1988)
(citation omitted).

17

Under the now familiar analytical framework that has been established for
analyzing ADEA claims, the plaintiff first bears the burden of establishing a
prima facie case. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If
the plaintiff meets this burden, it raises an inference of unlawful discrimination.
The burden of production then shifts to the defendant, who can dispel the
inference of discrimination by articulating a "legitimate, non-discriminatory
reason" for its employment action. McDonnell-Douglas, 411 U.S. at 802, 93
S.Ct. at 1824; Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. If the defendant
succeeds in this, the burden then returns to the plaintiff, who retains the
ultimate burden of persuasion. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. To
win his case, the plaintiff must "prove by a preponderance of the evidence that
the proffered reasons were not the employer's true reasons." Sorba v.

Pennsylvania Drilling Company, 821 F.2d 200, 202 (3d Cir.1987), cert. denied,
--- U.S. ----, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).
18

Saunders and CEPP argue that the evidence was insufficient to support the
verdict because it was not adequate to raise an inference of age discrimination
at the prima facie case stage. They also argue that the evidence is insufficient
to support a jury finding that their articulated, non-discriminatory reason for the
employment decision in this case is mere pretext.

A.
19

The defendants first challenge the sufficiency of the evidence to raise an

inference of age discrimination at the prima facie case stage. Of course, after a
case has been tried to a jury on the merits, "it is unnecessary for the appellate
court to decide whether a prima facie case had, in fact, been established." Blum
v. Witco, 829 F.2d 367, 372 n. 2 (3d Cir.1987). "Where the defendant has done
everything that would be required of him if the plaintiff had made out a prima
facie case, whether the plaintiff really did so is no longer relevant." United
States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct.
1478, 1481, 75 L.Ed.2d 403 (1983). Rather, the appellate court must consider
the ultimate issue: whether the plaintiff proved by a preponderance of the
evidence that age was a determinative factor in the employer's hiring decision.
Blum, 829 F.2d at 372 n. 2. "The issue of whether plaintiff established a prima
facie case is subsumed on appeal into whether the plaintiff has sustained his or
her ultimate burden," Dreyer v. Arco Chem. Co., 801 F.2d 651, 654 (3d
Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).

20

We will therefore treat the defendants' first contention as an argument that the
evidence is insufficient to support the verdict. The defendants' contention in
essence is that the evidence of a ten-year difference in age between Bruno, who
was 46 at the time she applied for the Clinics Fulfillment job, and Dietrich, who
was then 36, is insufficient to support an inference of age discrimination
essential to plaintiff's case. Put another way, the defendants argue that the
evidence could not support an ultimate conclusion that their employment action
was discriminatory because it is insufficient to allow any inference that Bruno's
age was a determining factor.2

21

We disagree. Congress has defined the protected class to include only those
people between forty and seventy years of age. 29 U.S.C. Sec. 631(a). Where
the plaintiff is a member of the protected class and the successful candidate is
not, the precise difference in age between the plaintiff and the successful
candidate is not decisive, at least in a case such as this where the difference is

not so small as to make an inference of discrimination absurd.

22

23

Contrary to the defendants' suggestion, this conclusion is not inconsistent with

Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985), cert. denied,
474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In Maxfield we held that
the difference in age between a 65-year old and a 42-year old was "sufficient"
to make out one of the elements of a prima facie case necessary to raise an
inference of age discrimination at that stage of the litigation. Maxfield,
however, presented a situation where the plaintiff and the successful job
applicant were both within the protected class. In that context we found it
necessary to examine the magnitude of the age difference in order to determine
whether it would support an inference of discrimination.
This case presents the more common type of discrimination case where the
plaintiff is within the protected class and the person ultimately chosen for the
job is not. In title VII cases of race or sex discrimination, from which our
method of analyzing age discrimination claims has been transplanted, this
would be enough to support an inference of discrimination. See, e.g., Jackson v.
University of Pittsburgh, 826 F.2d 230, 233 (3d Cir.1987), cert. denied, --- U.S.
----, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988) (title VII race discrimination case)
(where plaintiff is within protected class, one element of prima facie case made
out simply by showing that persons treated more favorably were not within the
protected class). So it is in actions under the ADEA. Maxfield did not disturb
the settled rule that more favorable treatment for those not within the protected
class will support an inference of age discrimination. See, e.g., Massarsky v.
General Motors, 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937, 104
S.Ct. 348, 78 L.Ed.2d 314 (1983) (to make out prima facie case, plaintiff "need
only show that he is a member of the protected class and that he was laid off
from a job for which he was qualified while others not in the protected class
were treated more favorably"). We conclude therefore that the evidence here
was sufficient to support an inference of age discrimination.

B.
24

"[O]nce the defendant has produced admissible evidence which would allow
the trier of fact rationally to conclude that the employment decision had not
been motivated by discriminatory animus ... plaintiff's ultimate burden of
persuasion includes the requirement to show that the defendant's proffered
reason is a pretext for discrimination." Chipollini v. Spencer Gifts, Inc., 814
F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26,
97 L.Ed.2d 815 (1987). In their second, more narrow, challenge to the
sufficiency of the evidence to support the verdict, the defendants argue that

even if the evidence of the difference in age between Bruno and Dietrich was
sufficient to support an inference of discrimination, there was insufficient
evidence to support a conclusion that the defendants' proffered reason was a
pretext.
25

The defendants here did articulate a legitimate, non-discriminatory motive for

failing to hire Bruno for the Clinics Fulfillment job. The defendants state that
Bruno was not selected because it was Degutis's perception that her interest in
the job was half-hearted. They also contend that Dietrich was selected over
Bruno based on her performance as acting head of the Clinics Fulfillment
Department during the two months that preceded her actual hire to fill the
Manager of Clinics Fulfillment position. Before the district court, Degutis
testified additionally that among the reasons he selected Dietrich were her
"enthusiasm" and the fact that she was the "most qualified" candidate. The
defendants do not rely on these explanations in this appeal.

26

There is a variety of evidence that tends to rebut the defendants' articulated

reasons for their employment action. As to Bruno's interest in the job, Bruno
testified that she spoke to Degutis often about the job during the time between
her interview and the time the position was ultimately filled, and that, indeed,
at one point he said to her "Addie, quit pushing." Both Degutis himself and
Richard Bates, then CEPP's Vice-President for Fulfillment Services, testified
that, subsequent to Bruno's interview with Degutis, Bates told Degutis that
Bruno wanted the job. Degutis also testified that Bruno mentioned the job to
him--albeit offhandedly--more than once during the period when he was
selecting among the candidates for the position.

27

As to Dietrich's performance during the interim period when she was acting
head of Clinics Fulfillment, there was testimony in the district court by others
employed by Saunders during that time--the Director of Management
Information Systems, and the Manager of Computer Operations--that Dietrich
did not show ability, at least in some aspects of the job. The evidence in its
totality meets the minimum threshold necessary to support a conclusion that the
defendants' proffered reasons were a pretext.

28

The law is clear that a plaintiff can win an age discrimination action without
direct evidence specifically relating to age by proving that the reason for the
unfavorable treatment put forward by the employer is a pretext. Chipollini, 814
F.2d at 898. The message of Chipollini is not, however, that anyone who
suffers an adverse employment decision can win a discrimination suit. The
message is that Justice Rehnquist's words for the Supreme Court will be taken
seriously: "when all legitimate reasons for rejecting an applicant have been

eliminated as possible reasons for the employer's action, it is more likely than
not the employer, who we generally assume acts only with some reason, based
his decision on an impermissible consideration." Furnco Construction Corp. v.
Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). This
framework places a premium on truthfulness by the defendant. If a "legitimate,
non-discriminatory" reason articulated by a defendant faced with a prima facie
case of discrimination is not the true reason for a failure to hire, the court may
infer that the actual reason was impermissible.
III.
29

The defendants next argue that the district court erred in the admission of
evidence and they ask for a new trial. In this Circuit, review of rulings on
relevance is plenary. See Brobst v. Columbus Services, 824 F.2d 271, 274 (3d
Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988).
Other evidentiary questions are reviewed for abuse of discretion.

A.
30

The defendants challenge the statistical evidence Bruno presented. In particular,

they attack studies done by plaintiff's expert that compare whether Saunders
employees over forty years of age received transfers or promotions in
proportion to the percentage of all Saunders employees over forty. The
defendants argue that these studies are irrelevant because they did not account
for the minimum objective qualifications of the jobs into which transfer or
promotion was possible. The Supreme Court has held that "[n]ormally, failure
to include variables will affect the analysis' probativeness, not its admissibility."
Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3008, 92 L.Ed.2d 315
(1986) (Brennan, J., joined by all other Members of the Court, concurring in
part). It has also noted that "[t]here may, of course, be some regressions so
incomplete as to be inadmissible as irrelevant." Id. at 400 n. 10, 106 S.Ct. at
3009 n. 10.

31

Unlike the main cases cited by the defendants, this is not a class action
disparate impact or disparate treatment case. See Segar v. Smith, 738 F.2d 1249
(D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258
(1985) (disparate impact); Valentino v. United States Postal Service, 674 F.2d
56 (D.C.Cir.1982) (disparate treatment). In such cases, statistical evidence that
does not account for minimum objective qualifications may not "measure
disparities among comparably qualified workers, rather than disparities in
qualifications." Segar, 738 F.2d at 1274. Of course, even in such cases, the
requirement that statistical evidence account for minimum qualifications is not

a "hard and fast rule." Id. Still, as a general matter, in class actions--"where
liability depends on a challenge to systemic employment practices[,] courts
have required finely tuned statistical evidence." Krodel v. Young, 748 F.2d 701,
709 (D.C.Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51
(1985).
32

By contrast, in individual disparate treatment cases such as this, statistical

evidence, which "may be helpful, though ordinarily not dispositive," id. at 710,
need not be so finely tuned. In individual disparate treatment cases such as this,
a general rule requiring that all statistical evidence account for minimum
objective qualifications would not be broadly useful. Rather, "the usefulness of
statistics will depend primarily upon their relevance to the specific decision
affecting the individual plaintiff." B. Schlei and P. Grossman, Employment
Discrimination Law 1316 (2d ed. 1983). See International Bhd. of Teamsters v.
United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856-57, 52 L.Ed.2d 396
(1977) (the usefulness of statistics "depends on all the surrounding facts and
circumstances").

33

The statistical evidence in this case is being used to bolster the plaintiff's case
that the defendants' articulated reason for an individual employment decision is
a pretext. Even though it does not account for the minimum objective
qualifications of the positions into which transfer or promotion was possible,
we conclude that the studies are "relevant." That is, as evidence they meet the
requirement of Federal Rule of Evidence 401 that they "make the existence of
any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence." Fed.R.Evid. 401.
Compare McDonnell-Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825
(defendant's policy and practice with respect to employment of protected class
relevant to showing of pretext).3

34

The studies are significantly less probative than they would be if they took
account of the minimum qualifications of the jobs into which promotion or
transfer occurred. However, the district court's conclusion that they are more
probative than prejudicial was within the limits of the permissible exercise of
that court's sound discretion.

B.
35

The defendants also challenge the plaintiff's statistical studies because they
compare new hires to the age of existing employees--without taking account of
the correlation between age and normal corporate advancement--and because
along with "individual termination decisions" they consider terminations

resulting from Saunders' decision to close its printing plant. The plaintiff
contends that these objections were waived because they were not specifically
made in the district court. While the defendants did not object to this evidence
at the time of introduction, they did challenge it in their motion in limine.
36

While normally an objection to the admission of evidence must be raised at

trial to be preserved, this court will sometimes permit evidentiary question to be
preserved by a motion in limine. See American Home Assurance Co. v.
Sunshine Supermarket, 753 F.2d 321 (3d Cir.1985). A determination that the
objections were preserved by a motion in limine requires an evaluation of the
extent of the briefing on the motion in limine, and the definitiveness of the
district court's ruling on the motion. The pretrial motion will suffice only if we
conclude that requiring an objection at trial "would have been in the nature of a
formal exception." Id. at 324-25.

37

In this case, the defendants' brief in support of its motion in limine specifically
raised the evidentiary issues the defendants now wish to present before this
court. However, the defendants have not pointed to any place in the record
where their motion was ruled on by the district court. Without a definitive
ruling against the defendants, there could be no reliance factor in this case.
Consequently, the defendants, in failing to object to these studies at trial, have
failed to preserve this issue for appellate review.

C.
38

The defendants also challenge the admission of evidence that Degutis and
Dietrich, the woman he finally chose for the Clinics Fulfillment position, were
seen together frequently. They argue that no reasonable inference of age
discrimination can be drawn from this evidence. After an examination of the
record, we conclude that, even if this evidence was not admissible, there was no
reversible error.4

IV.
A.
39

The defendants also seek a new trial on the basis of alleged error in the district
court's instruction to the jury that "[w]here economic savings are directly
related to an employee's age, however, it is a violation of the [ADEA] not to
hire an older employee for those reasons.... [I]f you believe that the economic
savings to the company were an age related factor which induced the
defendants to hire Beverly Dietrich for economic reasons rather than an older

employee such as Adeline Bruno, then Adeline Bruno is still entitled to prevail
on her claim."
40

In the district court, at the end of the jury charge, the defendants challenged this
instruction only on the ground that there was insufficient evidence to support it.
The defendants renew this contention before this court.5

41

We find the defendants' challenge without merit. While there may not be any
evidence that there was a correlation between age and salary across the board at
Saunders, there certainly was evidence that there was a financial saving
involved in hiring the younger Dietrich over the older Bruno. In addition, there
was testimony of another employee who was not chosen for the Clinics
Fulfillment job, Ann Marie Martino, that CBS (of which CEPP is a division)
was trying to reduce its number of longer-term employees in order to reduce its
costs. Because the defendants' contention is without merit, the district court's
refusal to grant a new trial on this ground was not an abuse of discretion.

B.
42

We also find without merit the defendants' contention that a new trial is
required because the district judge instructed the jury on the circumstantial
order of proof developed in the McDonnell-Douglas line of cases. Even
assuming that submission to the jury of the question whether the plaintiff made
out a prima facie case is error, we do not believe the instructions here could
have confused and misled the jury such that the defendants would be
prejudiced. At worst, the jury instructions--which, taken as a whole, fairly and
adequately described the shifting burdens of production and persuasion-presented the plaintiff with an additional obstacle, the possibility that the jury
would find for the defendants on the basis that the plaintiff failed to make out a
prima facie case. Therefore there again was no abuse of discretion when the
district court declined to grant a new trial on this ground.

C.
43

The defendants' most confusing allegation involves a so-called missing witness,

CEPP executive William Wright. Bruno testified at trial that Wright told her
"off the record" that if he had been her, he would have pursued an age
discrimination claim. She testified that he also told her "if you ever repeat that,
I'll deny it." While defendants' counsel said in his opening statement that he
would call Wright to testify, Wright was not called. Although there was no
evidence concerning Wright's availability, the district judge gave the jury a
standard "missing witness" instruction charging them to decide whether Wright

was reasonably available only to the defendant or equally available to both

parties in ascertaining whether to draw an adverse inference from the
defendants' failure to call him.
44

While the jury deliberated, the judge--at the suggestion of defendants' counsel-took the highly unusual step of taking Wright's testimony by telephone from
New York. The purpose of this call was apparently to get testimony concerning
Wright's availability. Wright testified that Bruno saw him and spoke to him
during one morning of the trial when he was in the courtroom. Wright also
testified--in response to a question from the judge--that he had not made the
statement attributed to him by Bruno. The judge granted the defendants' motion
to admit this testimony. However, by this time, the jury had reached a verdict
for Bruno.

45

Nonetheless, the district judge permitted the jury to hear the testimony of
Bruno and her counsel that neither one of them had knowledge that Wright was
in the courtroom during the trial. The judge then had a tape recording of
Wright's telephone testimony played to the jury. The judge permitted an
additional summation by each side, then sent the jury back to deliberate further
with an interrogatory asking whether this evidence would cause them to change
their verdict. Eight minutes later, the jury returned with the answer "No."

46

The defendants challenge the propriety of giving a missing witness instruction,

and argue that the instruction given by the district judge was in error. The
plaintiff contends that there was evidence sufficient to permit a conclusion that
Wright was peculiarly within the defendants' power to produce. She also argues
that any error was cured by the post-verdict proceedings in the district court
which presented evidence to the jury on the question of Wright's availability to
the parties.

47

The parties miss the significance of the introduction of Wright's testimony.

Wright testified not merely on his availability, but on the issue on which the
inference adverse to the defendant was permitted to be drawn. Thus, the judge's
post-verdict interrogatory to the jury did not merely ask them to reconsider
Wright's availability to the parties, it asked them to reconsider their verdict in
light of Wright's testimony favorable to the defendants that he had not told
Bruno that she was right to pursue her age discrimination charge. Thus, the
"missing witness" is no longer missing and any taint that might have been
caused by the allegedly improper charge was cured by his testimony and the
district judge's post-verdict interrogatory.6

V.

48

The defendants next argue that there was insufficient evidence to permit the
jury to find that Bruno satisfied her duty to minimize her damages. They assert
that Bruno's rejection of the job she was eventually offered as Manager,
Inventory Planning and Control at the Bellmawr, New Jersey warehouse
facility constituted a rejection of an unconditional offer of a "substantially
equivalent" job. The defendants contend that this forfeits her right to monetary
relief for any period subsequent to that rejection.

49

In Ford Motor Co. v. EEOC, 458 U.S. 219, 232, 102 S.Ct. 3057, 3066, 73
L.Ed.2d 721 (1982), the Supreme Court held that an employment
discrimination plaintiff's duty to minimize his damages includes a requirement
that he accept a "substantially equivalent" job offered by the defendant. If the
plaintiff fails to accept such a job, the accrual of back pay liability by the
defendant employer will be tolled. The Supreme Court, however, also
recognized in Ford Motor Co. that the plaintiff's obligation in this regard was
not absolute. "The claimant's obligation to minimize damages in order to retain
his right to compensation does not require him to settle his claim against the
employer, in whole or in part. Thus an applicant or discharged employee is not
required to accept a job offered by the employer on the condition that his claims
against the employer be compromised." Ford Motor Co., 458 U.S. at 232 n. 18,
102 S.Ct. at 3066 n. 18.

50

The jury here found by special interrogatory that the job Bruno was eventually
offered as Manager, Inventory Planning and Control at the Bellmawr, New
Jersey warehouse facility was "superior or substantially equivalent" to the
Clinics Fulfillment position that Bruno was denied. A second interrogatory
asked whether "the plaintiff act[ed] as a reasonable person under the
circumstances would have acted when she rejected the offer of the Bellmawr
job." We understand this interrogatory to address the question whether the offer
of the Bellmawr job was conditioned on Bruno dropping her age discrimination
claim. 7 The jury answered in the affirmative.8 The defendants now argue that
the evidence was insufficient to support the jury's conclusion.

51

Even assuming this contention was not waived, an examination of the record
reveals that the defendants' position is without merit. Bruno testified that
Richard Bates, then Vice-President of Fulfillment Services at CEPP in New
York, told her "that it would be expected of me to drop my [EEOC] claim if I
accepted [the Bellmawr job] ... and I took that to mean that--that you better do it
or they're gonna find a way to get rid of you." She also testified that this
conversation made her feel that "They're gonna get you over in a job that you
can't do and they're gonna find an excuse to get rid of you."

52

Bruno testified that she felt her fear was supported by her discussion with
Bates: "I even said to Rick, 'Suppose I try it. Will you put in writing that if it
doesn't work out and I can still be let go and have my same severance that I
would have had in February?' And he said, 'Well, I don't think we can do that.'
And then I thought right then and there: Well ... they really are not offering this
to me as a way to help me; they're just trying to help themselves. They want me
to drop my claim."

53

This evidence is sufficient to permit the jury's award notwithstanding the

substantial equivalence of the Bellmawr job with the Clinics Fulfillment
position for which Bruno originally applied.

54

The defendants rely on the fact that Bates's superior, William Wright,
subsequently wrote Bruno a note, at a time when she could still have taken the
job, saying "[t]he Bellmawr job offer is not, and never was, conditional on
dropping your claim. If it was, the condition would necessarily have been stated
in writing ... I do not understand how your perception of this matter evolved."

55

The defendants argue that this memo renders irrational any inference that the
Bellmawr job was conditioned on Bruno dropping her EEOC charge. This
evidence, however, merely presents a question of credibility. Notwithstanding
the memo, the record contains sufficient evidence to support the jury's
conclusion.9

56

The defendants also point out that Bruno testified in a deposition that after
receiving Wright's memo, "I understood that I could accept the job and still
pursue the claim if I wanted to." In context, the jury was entitled to read this
simply as a statement of Bruno's belief that any such condition was contrary to
law. Bruno's testimony does not alter the fact that there is sufficient evidence to
support a conclusion by the jury that the Bellmawr job was conditioned on
Bruno's claim being compromised.

VI.
57

The defendants finally challenge the district court's award of liquidated

damages. The ADEA provides that "liquidated damages shall be payable only
in cases of willful violations." 29 U.S.C. Sec. 626(b). A finding of willfulness
in an individual disparate treatment case requires not merely that the employer
knew or should have known that its conduct violated the ADEA, but "some
additional evidence of outrageous conduct." Dreyer v. Arco Chem. Co., 801
F.2d at 658. "The Restatement suggests that in assessing punitive damages, the

trier of fact can properly consider inter alia the character of the defendant's act,
and the nature and extent of the harm to the plaintiff that the defendant caused
or intended to cause." Id. (quoting Restatement (Second) of Torts Sec. 908(2))
(brackets and internal quotation marks omitted). "[T]he appropriateness of the
award [of liquidated damages is] dependent upon an ad hoc inquiry into the
particular circumstances." Id. The jury in the present case awarded Bruno
$150,000 in back pay, of which the parties agree $75,000 represents liquidated
damages and $700,000 in front pay of which the parties agree $350,000
represents liquidated damages.10
A.
58

To begin with, the defendants argue that the evidence is not sufficient to
support a finding of willfulness. We disagree. Again assuming this objection
was not waived, after examining the record we conclude that there is sufficient
evidence of willfulness to support an award of liquidated damages.

59

As to the character of the defendants' action, both Bruno and Ann Marie
Martino, another applicant who was not chosen for the Clinics Fulfillment post,
testified that a job description prepared for the opening in that position was
unusual in that it did not include a requirement of "management experience." A
jury could infer that the job description was intended to provide a justification
for the selection of Dietrich over Bruno. We also observe that the evidence
surrounding the offer to Bruno of the Bellmawr job could support a conclusion
that the position was offered her in bad faith.

60

Additionally, there is evidence that the discriminatory action here was taken
against an employee who was being laid off after eleven years of service, in
favor of an employee whose then-current job at Saunders was not being
eliminated. It is also relevant that there is evidence that during her tenure at
Saunders, Bruno received the CBS Employee Achievement Award and an
"outstanding employee" award from Saunders for demonstrating "commitment
and excellence beyond the normal requirements of [her] position."

61

As to the extent of the harm caused to Bruno, there is evidence that she was
unable to find another job for eleven months, and that she eventually had to
accept an enormous reduction in salary. Taken together, the evidence--though
concededly not all of equal weight on the issue--is sufficient to support the
finding of "outrageousness" required to award liquidated damages.

B.

62

The defendants next argue that even if the evidence supports an award of
liquidated damages, such damages are not permissible on front pay. Liquidated
damages are defined in the Fair Labor Standards Act, 29 U.S.C. Sec. 216(b),
incorporated by reference in the ADEA, 29 U.S.C. Sec. 626(b), as an amount
equal to "minimum unpaid wages or ... unpaid overtime compensation." The
defendants argue that front pay is an equitable substitution for an order of
reinstatement, and not an award of lost future wages. The plaintiff argues that
the deterrent purpose of liquidated damages will be served identically whether
the award is for "front pay" or "back pay," and that the division of lost wages
into past and future components is largely a matter of fortuity, depending upon
how long it takes for the case to get to trial.

63

This dispute was settled in this Circuit by Blum v. Witco, 829 F.2d at 382-83.
While Blum by its terms applies only to front pension benefits, its implication
is unmistakable: "A front pay (or, in this case, front benefits) award is the
monetary equivalent of the equitable remedy of reinstatement. Given its tenor,
we decline to extend the liquidated damages provision of the ADEA to double
this equitable award." Id. at 383 (citations omitted). The district court's award
will be reduced by the amount that represents liquidated damages for front
pay.11

VII.
64

The judgment of the district court will be affirmed after a reduction of

$350,000. Seventy-five percent of the costs will be allocated against appellants,
and twenty-five percent against appellee.

65

GREENBERG, Circuit Judge, dissenting.

66

I respectfully dissent. Bruno's three statistical studies of transfers and

promotions, new hires, and terminations had no probative value because they
failed to take into consideration the "minimum objective qualifications"
necessary for the positions at issue. The Supreme Court has concluded that
statistical analyses offered into evidence in employment discrimination cases
which do not take into consideration the special qualifications which may be
necessary for the positions at issue are fundamentally flawed.

67

In Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53
L.Ed.2d 768 (1977), a Title VII case in which the government alleged racial
discrimination in the hiring of teachers, "the Court of Appeals rejected the trial
court's analysis of the statistical data as resting on an irrelevant comparison of

Negro teachers to Negro pupils," and "directed judgment for the Government."
Id. at 304-06, 97 S.Ct. at 2740-41. While it vacated the judgment of the court of
appeals,1 the Supreme Court observed that
68 District Court's comparison of Hazelwood's teacher work force to its student
the
population fundamentally misconceived the role of statistics in employment
discrimination cases. The Court of Appeals was correct in the view that a proper
comparison was between the racial composition of Hazelwood's teaching staff and
the racial composition of the qualified public school teacher population in the
relevant labor market.
69

Id. at 308, 97 S.Ct. at 2741-42.

70

Although recognizing that work-force/general population comparative statistics

may be "highly probative ... [when] the job skill involved ... [--such as] the
ability to drive a truck--is one that many persons possess or can fairly readily
acquire," id. at 308 n. 13, 97 S.Ct. at 2742 n. 13 (discussing International Bhd.
of Teamsters v. United States, 431 U.S. 324, 339-340 & n. 20, 97 S.Ct. 1843,
1856 & n. 20, 52 L.Ed.2d 396 (1977)), the Court stated that "[w]hen special
qualifications are required to fill particular jobs, comparisons to the general
population (rather than to the smaller group of individuals who possess the
necessary qualifications) may have little probative value." 433 U.S. at 308 n.
13, 97 S.Ct. at 2742 n. 13. 2

71

The Supreme Court in Hazelwood referred to Mayor of Philadelphia v.

Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630
(1974), as an example of a case "in which the racial-composition comparisons
failed to take into account special qualifications for the position in question."
433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13 (citing Educational Equality
League, 415 U.S. at 620-21, 94 S.Ct. at 1333-34). In Educational Equality
League, the plaintiffs alleged that the mayor of Philadelphia had violated the
Equal Protection Clause of the Fourteenth Amendment by discriminating
against blacks in making appointments to the city's panel charged with
submitting nominees to him to fill vacancies on the city's school board. The
Supreme Court reversed the finding of racial discrimination by the court of
appeals because it was based, in part, on "racial-composition percentage
comparisons [of the panel's racial composition to that of Philadelphia's
population] that we think were correctly rejected by the District Court as
meaningless." The Court stated that "this type of proof is too fragmentary and
speculative to support a serious charge in a judicial proceeding." 415 U.S. at
621, 94 S.Ct. at 1333. 3

72

In another Supreme Court Title VII case, Bazemore v. Friday, 478 U.S. 385,
106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), the plaintiffs had attempted to
introduce into evidence statistical studies based on multiple regression analyses
designed to show that employee salary levels were affected by the employer's
racial discrimination. The district court held that, although the regressions used
four variable factors, consisting of race, education, tenure, and job title, the
failure to use other factors, including pay increases which varied by county,
precluded their introduction into evidence. See id. at 398-99, 106 S.Ct. at 3008.

73

The district court's decision to exclude this evidence was upheld by the court of
appeals. However, the Supreme Court held that

74 Court of Appeals erred in stating that petitioners' regression analyses were

[t]he
'unacceptable as evidence of discrimination,' because they did not include 'all
measurable variables thought to have an effect on salary level.' The court's view of
the evidentiary value of the regression analyses was plainly incorrect. While the
omission of variables from a regression analysis may render the analysis less
probative than it otherwise might be, it can hardly be said, absent some other
infirmity, that an analysis which accounts for the major factors 'must be considered
unacceptable as evidence of discrimination.' Normally, failure to include variables
will affect the analysis' probativeness, not its admissibility.
75

Id. at 400, 106 S.Ct. at 3009 (emphasis added) (citation omitted).

76

It is significant that the Court added in a footnote that "[t]here may, of course,
be some regressions so incomplete as to be inadmissible as irrelevant; but such
was clearly not the case here." Id. at 400 n. 10, 106 S.Ct. at 3009 n. 10.

77

In Bazemore, the Supreme Court addressed a statistical study which, although

not including "all measurable variables," included all "major factors." Id. at
400, 106 S.Ct. at 3009. The statistical studies submitted by Bruno, however,
were apparently not controlled for any factor other than age.4 Furthermore, the
plaintiffs in Bazemore had "presented evidence to rebut [defendants']
contention that county to county variations in contributions to salary explain the
established disparity between black and white salaries." Id. at 402, 106 S.Ct. at
3010. In this case, Bruno did not produce evidence to refute the defendants'
assertion that her statistical studies would show no disparities based on age if
they had taken into consideration the minimum objective qualifications of the
positions at issue.

78

Relying on Hazelwood, the United States Court of Appeals for the District of

Columbia Circuit, in a Title VII case, noted that

79 most common nondiscriminatory explanation for a systemic disparity in
[t]he
treatment is a lack of qualifications among the minority group members. A
plaintiff's statistical evidence must therefore focus on eliminating this
nondiscriminatory explanation by showing disparities in treatment between
individuals with comparable qualifications for the positions at issue.
80[B]oth the methodology and the explanatory power of the statistical analysis must
...
be sufficient to permit an inference of discrimination.
81To ensure that a plaintiff's methodology has eliminated the common
...
nondiscriminatory explanation of a lack of qualifications, this circuit has developed
a requirement that statistical evidence of disparities account for the minimum
objective qualifications for the positions at issue.
82

Segar v. Smith, 738 F.2d 1249, 1274 (D.C.Cir.1984) (citing Hazelwood, 433
U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13) (citation omitted),5 cert. denied, 471
U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); see Simpson v. MidlandRoss Corp., 823 F.2d 937, 943-44 (6th Cir.1987) (ADEA); Palmer v. Shultz,
815 F.2d 84, 91 & n. 6 (D.C.Cir.1987) (Title VII); Valentino v. United States
Postal Serv., 674 F.2d 56, 69 (D.C.Cir.1982) (same); Grano v. Department of
Dev., 637 F.2d 1073, 1078-79 (6th Cir.1980) (same).6

83

In its charge to the jury in this case, the district court, after discussing expert
witnesses in general, referred to statistical evidence and stated that

84 order for a statistical analyses [sic ] of an employer's personnel decisions to reveal

in
an apparent age bias not produced by chance or other nondiscriminatory factors in
those personnel decisions, the analyses must utilize accepted methods and formulas
and must account for the minimum objective qualifications for the positions filled
by those personnel decisions.
85

Statistical analyses which apparently reveal an age bias in personnel decision

making but which do not control for the minimum objective qualifications
necessary for the positions studied are for all intents and purposes meaningless.

86

So you should scrutinize closely the statistics, the basis for them and recall the
various apples and oranges, apples and apples arguments in looking at the
statistics to see that they are of some assistance to you in reaching a proper
result in this case.

87

App. at 379-80.

88

The difficulty with this charge, though a correct statement of the law, is that it
required the jury to determine whether the statistical evidence was
"meaningless," i.e., irrelevant, since devoid of probative value under
Fed.R.Evid. 401 and 402. Although the district court properly charged the jury
that in considering the value of the experts' testimony it should take into
account the facts on which their opinions were based and whether "their facts
are in fact facts," app. at 378, the court should have excluded the statistical
evidence itself.7 While a jury makes factual determinations, it surely does not
undertake to make the legal determination of whether an analysis controls for
"minimum objective qualifications." What happened here is clear. Prejudicial
irrelevant evidence was admitted which the jury was told to disregard if it made
findings of law going not simply to weight but to admissibility. Here the only
charge to the jury regarding the statistical evidence that would have been
correct would have been an instruction to disregard it. The district court in this
case wrongfully relinquished its function as the judge of the law, which
includes the obligation to pass on the admissibility of evidence, to the jury. The
threshold question of the admissibility of statistical evidence is simply not
subject to conditional admissibility under Fed.R.Evid. 104(b).

89

I agree with the majority's observation that while this is an individual disparate
treatment case, it has been in class action disparate impact or disparate
treatment cases in which the law regarding statistical evidence has largely
developed. Majority op. at 766-67. The majority further points out that in an
individual disparate treatment case statistical evidence, though helpful, will
ordinarily not be dispositive, and with this I also agree, as in an individual
treatment case the evidence will focus on the particular plaintiff rather than an
overall class.

90

However, I part company with the majority's conclusion that statistical

evidence, irrelevant because inherently unreliable, can, somehow, in a different
context, be relevant. The point is that the statistical evidence, whether
introduced in a class action disparate treatment or impact case or an individual
disparate treatment case, has the same purpose: to support the position of a
party in a case involving a claim of discrimination. Thus, here the district court
instructed the jury in its charge that Bruno's statistical evidence was offered in
support of her case. At most, the distinction between class actions and
individual disparate treatment cases could be the basis for a harmless error
analysis when flawed statistical evidence is admitted, but on the record here the
evidence was not harmless and the majority does not undertake a harmless error

analysis. Rather, it writes:

91

The statistical evidence in this case is being used to bolster the plaintiff's case
that the defendants' articulated reason for an individual employment decision is
a pretext. Even though it does not account for the minimum objective
qualifications of the positions into which transfer or promotion was possible,
we conclude that the studies are 'relevant.'

92

Majority op. at 767.

93

Liability in this case was sharply disputed, and the outcome clearly could have
been a verdict for the defendants. The door is now open in this circuit to the
admission of plainly irrelevant statistical evidence in individual disparate
treatment cases. What else can be concluded from an opinion upholding the
admission of statistical evidence which is acknowledged not to account "for the
minimum objective qualifications of the positions into which transfer or
promotion was possible"?

94

I have not ignored the majority's conclusion that the defendants' objections to
the statistical studies were not properly preserved. Majority op. at 767. The
majority, however, reaches this conclusion only with respect to the new hires
and termination studies inasmuch as it reaches the merits of the defendants'
objections to the transfer and promotion study of persons over 40 as compared
to those under 40.

95

In any event, the termination and new hire studies, even if valid, are of remote
interest at best in this case. While there can be no doubt that Bruno's prior
position as Director of the Central Order Processing Department was
terminated, that was because it was eliminated as a result of a management
decision not in issue here. Bruno's complaint is that she should have been given
the position of Manager of Clinics Fulfillment, the position awarded to
Dietrich. Accordingly, Bruno complains of a transfer decision. Thus, the
transfer and promotion study is quite germane to this case while the new hires
and termination studies have significantly less probative value.

96

Furthermore, as the majority acknowledges, even the new hires and termination
studies were challenged by the defendants in a motion in limine. Majority op. at
767. The majority, however, finds this presentation insufficient to preserve the
issue because the district court did not rule on the motion, and thus "there could
be no reliance factor in this case," majority op. at 768, meaning that the
defendants could not have relied on an earlier ruling thereby to excuse their

failure to object when the evidence was presented. I simply cannot agree with
this analysis. The district court knew full well what the defendants' position
was on this issue. In fact, in its opinion on the defendants' renewed objections
to the statistical evidence in their post-trial motion for a judgment
notwithstanding the verdict or for a new trial, the district court simply wrote:
97

Defendants also argue that Dr. Sullivan's studies were deficient. 'Statistical
evidence is an appropriate method for establishing disparate impact as indirect
evidence of age discrimination.' Blum v. Witco Chemical Corp., 829 F.2d at
372. Defendant's argument goes to the weight of the evidence, which, of
course, is an issue for the jury alone to decide. See: Aloe Coal Co. v. Clark
Equipment Co., 816 F.2d 110, 113 (3d Cir.), cert. denied, 484 U.S. 953, 108
S.Ct. 156, 98 L.Ed.2d 111 (1987).
App. at 517. 8

98

The district court thus did not suggest that the objection to the statistical
evidence had been waived. Furthermore, even Bruno does not contend that the
defendants waived their objections to admission of the statistical evidence on
the basis of relevancy for in her brief on this appeal she states the following:

99

Defendants' objection to the admission of Plaintiff's statistical proofs is also

waived since it is little more than a request for this Court to judge the
credibility of competing expert witnesses. Such 'sufficiency' arguments, though
presented as 'relevance' objections, were waived by non-inclusion in
Defendants' directed verdict motion.

100 Brief at 27-28 (emphasis added).

101 Clearly, a failure to argue on a motion for a directed verdict that certain
evidence is insufficient to support a position is not a waiver of a prior objection
that the evidence was not relevant.
102 I dissent for a second reason as well. As the Supreme Court pointed out in Ford
Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), in a
Title VII case a plaintiff's duty to minimize her damages includes the
requirement that she accept a substantially equivalent job offered by the
defendant, failing which the accrual of back pay liability will be tolled.9 This
duty, however, does not require her to settle her claim against the employer in
whole or in part, and thus she need not accept an offer contingent on
compromising her claim against her employer.

103 Here the jury found that although Bruno was offered a position of Manager,
Inventory Planning and Control, at Bellmawr, New Jersey, which was superior
or substantially equivalent to the position of Manager of Clinics Fulfillment,
she acted as a reasonable person in the circumstances in rejecting the offer. The
majority indicates that the relevant interrogatory was designed "to address the
question whether the offer ... was conditioned on Bruno dropping her age
discrimination claim." Majority op. at 770. This is an understandable
conclusion inasmuch as the district court in denying the defendants' argument in
their post-trial motion that Bruno failed to mitigate her damages relied solely on
her testimony that the Bellmawr position offer was contingent on her dropping
her ADEA claim. This offer was made in October 1985, when Bruno was still
employed as Director of the Central Order Processing Department. The
majority explains that the jury was justified in its conclusion because Bruno
testified that she was told that she had to drop her claim if she took the job and
she took that to mean that "you better do it or they're gonna find a way to get
rid of you." Majority op. at 770.
104 The problem is, as the majority recognizes, majority op. at 770, that Bruno
subsequently was told in a written memorandum from William Wright of
December 16, 1985, that the Bellmawr job offer "is not, and never was,
conditioned on dropping your claim."10 Bruno received this memorandum
while the offer remained open and well before her May 1986, lay off.
Accordingly, Bruno, at her option, could have been continuously employed by
the defendants at a position at least substantially equivalent to that which she
was losing. Therefore, it was her own intransigence which caused her damages.
105 The majority disposes of the defendants' contention on this issue by indicating
that the memorandum "merely presents a question of credibility.
Notwithstanding the memo, the record contains sufficient evidence to support
the jury's conclusion." Majority op. at 770-71. In a footnote the majority
indicates that "[t]he defendants make no suggestion that Wright's memo gave
rise to any new duty on Bruno's part." Majority op. at 771 n. 9.
106 The question of Bruno's continuing employment with the defendants, however,
was subject to ongoing discussions and the defendants clearly contend that both
before and after the December 16, 1985, memorandum the Bellmawr position
was available to Bruno. Although the defendants claim that at most there was
originally a misunderstanding regarding the terms of this offer, as they never
made it conditional on Bruno's dropping her claim, I will assume that the offer
was initially conditioned on her doing so. Nevertheless, the indisputable fact
remains that while Bruno was still employed by the defendants, the Bellmawr
position was open to her and she was told in writing that she could have it and

still pursue her discrimination claim.

107 It is absolutely beyond my understanding how this written statement can be
weighed against an earlier conversation and dismissed on a credibility basis.
While I will not import the parol evidence rule into this opinion, I will simply
say that obviously the written memorandum was controlling. Surely in light of
that memorandum, even ignoring other questions concerning the validity of
compromises of ADEA claims,11 it cannot seriously be contended that if Bruno
had taken the Bellmawr position the defendants, on the basis of an alleged
compromise, could have successfully moved for dismissal of her ADEA claim.
Furthermore, I am not impressed with Bruno's statement that she thought she
would be fired if she took the new job and continued to press her claim. To start
with, that understanding came from the original oral offer which was
superseded by the December 16, 1985, memorandum. In any event, if she were
fired because she would not drop her claim, she would have had a new claim
based on the retaliation. While I recognize that such a claim would be subject to
proof problems, the same was true for her original claim.12
108 I have one final point with regard to the memorandum. Although it may well be
that it was written on the basis of legal advice, what precluded the defendants
from amending a previously unlawful offer to make it lawful? I should think
that employers should be encouraged to amend conditional offers so as to come
into compliance with the law. Cf. Ford Motor Co. v. EEOC, 458 U.S. at 229,
102 S.Ct. at 3064 (in a Title VII case defendants should be encouraged to make
curative, unconditional job offers to claimants to bring themselves into
voluntary compliance and end discrimination far more quickly than in
litigation).
109 I have dissented on two bases. As the first, if adopted by the court, would lead
to a new trial and the second to the entry of a judgment for the defendants, my
dissent leads me to vote for entry of an order remanding the matter for entry of
a judgment for the defendants.

Since the date of the argument in this case, Judge Seitz has taken senior status

Bruno's complaint also included allegations of sex discrimination in violation of

title VII, 42 U.S.C. Sec. 2000e, et seq., discrimination in violation of state law,
and breach of contract. Bruno no longer presses these claims

Although we do not address this contention in terms of the prima facie case, it
may be that our inquiry into the sufficiency of the evidence to support such an

inference will not differ markedly from an inquiry into whether the plaintiff has
introduced evidence sufficient to establish one of the elements essential to her
prima facie case. Cf., Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1115 n.
10 (3d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3213, 106 L.Ed.2d 564
(1989)
3

This conclusion also disposes of the defendants' contention that there is no

admissible evidence to support the district court's instruction to the jury that
Bruno could establish age discrimination "by showing that defendants engaged
in a pattern or practice of discrimination against their employees or prospective
employees." The defendants do not argue that this jury instruction contains a
misstatement of the applicable law

Neither was there any reversible error in the district court's decision to exclude
evidence of Dietrich's post-selection performance on the ground that it is
irrelevant to Dietrich's qualifications to be selected for the Clinics Fulfillment
position

A second objection that the defendants urge before this court--that the
instructions did not accurately state the substantive law--was not presented in
the district court

This also disposes of the defendants' contention that the district judge erred in
permitting plaintiff's counsel to make a "missing witness" argument in his
closing argument to the jury. The defendants' contention that there is clear and
convincing evidence that the plaintiff and her counsel procured the judgment
through fraud by denying Wright was available to them is also without merit

The defendants did not challenge this interrogatory in the district court on the
basis that it contained a misstatement of the applicable law

Under our understanding, the jury's answers to these two interrogatories are
not, as defendants suggest, "inconsistent."

The defendants make no suggestion that Wright's memo gave rise to any new
duty on Bruno's part

10

We conclude that, taken as a whole, the district court's instructions fairly and
adequately presented to the jury the standard for finding a "willful" violation of
the statute

11

The defendants' challenges to the amount of front pay awarded are without
merit. Assuming without deciding that the defendants preserved their objection
to the jury instructions on front pay, we conclude that the instructions taken as

a whole fairly presented the issue to the jury, including the question of the
duration of the period for which front pay should be awarded
The determination of the amount of front pay necessarily involves some
imprecision. However, to permit the jury to undertake that calculation is not
reversible error and we decline to order a new trial simply because the amount
is not the same as that offered by Bruno's expert.
1

The Court held that

the Court of Appeals erred in disregarding the post-Act hiring statistics in the
record, and that it should have remanded the case to the District Court for
further findings as to the relevant labor market area and for an ultimate
determination of whether Hazelwood engaged in a pattern or practice of
employment discrimination after May 24, 1972.
433 U.S. at 313, 97 S.Ct. at 2744.

In two recently decided Title VII cases, the Supreme Court has reaffirmed the
Hazelwood requirement that statistical studies purporting to provide evidence
bearing on employment discrimination take into account the qualifications
required for the positions at issue. See Wards Cove Packing Co. v. Atonio, --U.S. ----, 109 S.Ct. 2115, 2121-22, 104 L.Ed.2d 733 (1989); Watson v. Fort
Worth Bank and Trust, 487 U.S. ----, ----, 108 S.Ct. 2777, 2790, 101 L.Ed.2d
827 (1988)

The Court observed that "assuming, arguendo, that percentage comparisons are
meaningful in a case involving discretionary appointments, the relevant
universe for comparison purposes consists of the highest ranking officers of the
categories of organizations and institutions specified in the city charter, not the
population at large." 415 U.S. at 620-21, 94 S.Ct. at 1333

Bruno does not contend, nor could she in the face of her expert witness's trial
testimony to the contrary, that the statistical studies were controlled for specific
job qualifications. See app. at 603-623

In Anderson v. Group Hospitalization, Inc., 820 F.2d 465 (D.C.Cir.1987), a

Title VII case where the employer's promotion practices were at issue, the court
observed that, although in the usual case "no inference of unlawful racial
animus can be drawn from a statistical comparison that fails to account for
relevant job qualifications," taking into account such qualifications was
unnecessary where the employer had established "no objective critera
governing promotions." Id. at 469, 470; see Davis v. Califano, 613 F.2d 957,
964-65 (D.C.Cir.1979). However, here there is ample evidence, including

Bruno's testimony and documentary evidence concerning defendants' personnel

policy, including job posting, see, e.g., app. at 880, 895, 897, 900-900h,
showing that at least some of the positions which were the subject of the
statistical studies required particular qualifications
6

The standard for relevancy should be the same whether the statistical evidence
is offered to rebut the employer's evidence that the employment decision was
non-discriminatory and thus legitimate, as it apparently was in this ADEA case,
or as part of the employee's attempt to establish prima facie employer
discrimination, typically in Title VII disparate impact cases

Although Bruno contends that defendants presented no evidence concerning the

minimum qualifications of the positions covered by the studies, she herself
testified at trial about the skills required for some of these positions. See app. at
588-601. In any case, the party seeking to introduce evidence has the burden of
demonstrating that it is relevant so as to be admissible. See 22 C. Wright & K.
Graham, Federal Practice and Procedure Sec. 5166, at 69 n. 20 (1978)

This post-trial opinion treating arguments directed to the deficiency in the

studies as going to weight rather than admissibility is consistent with its charge
which gave the jury the function of making threshold admissibility
determinations

I agree with the majority and the parties that Ford Motor Co. applies to ADEA
actions

10

The germane paragraph in the memorandum reads in its entirety as follows:

(4) The Bellmawr job offer is not, and never was, conditional on dropping your
claim. If it was, the condition would necessarily have been stated in writing. In
the absence of such, the state agency would have to decide whether acceptance
of the job had bearing on the claim. This is not the Company's prerogative. I do
not understand how your perception of this matter evolved.

11

See, e.g., Cirillo v. Arco Chemical Co., 862 F.2d 448 (3d Cir.1988)

12

I realize that the position Bruno accepted and then rejected required a
somewhat longer commute than the position awarded Dietrich. But that did not
stop Bruno from finding it acceptable, because, as the majority points out, she
first took the position but changed her mind four weeks later. Majority op. at
763. Obviously, the distance was no problem then. Furthermore, there was
evidence that the Bellmawr commute was 45 minutes and thus the additional
time for that commute over that to the Clinics Fulfillment position in
Philadelphia could not have been substantial. Indeed, the majority does not

even discuss the possibility that the commuting distance would have justified
Bruno in turning down the Bellmawr position. In any event, if the jury could
have made its finding that Bruno acted reasonably in rejecting the Bellmawr
position because of the commuting distance, a new trial should be granted
because the jury might nevertheless have made its finding that Bruno
reasonably rejected the Bellmawr position on the basis of the offer being
conditional on her dropping her claim. See Bone v. Refco, 774 F.2d 235, 242
(8th Cir 1985)